Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1301254
Original file (MD1301254.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130516
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:
        
Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       NFIR - 20010723         Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010724     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070523      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 33
MOS: 0613
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol KDSM

Periods of CONF : 20050217 - 20050406, 44 days

NJP:

- 20020708 :       Article (Failure to obey order or regulation, to wit , not having a liberty buddy in Okinawa, Japan)
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 20050217 :       Art icle (Wrongful use, possession, etc., of controlled substances , 3 specifications )
         Specification 1: On or about 20040105, wrongful use of marijuana
         Specification 2: On or about 20041216, wrongful use of marijuana
         Specification 3 : On or about 20050110, wrongful use of marijuana
         Sentence : 100 Days

Retention Warning Counseling :

- 20020717 :       For your recent NJP for violating Article 92 .

- 20020801 :       For your substandard marking for conduct during this semiannual period. You received a 3.9 marking for conduct.

- 20021227 :       For violating Article 92, by having expended ammunition in the BEQ.




Types of Documents Submitted/reviewed

 Related to Military Service:
         DD 214:            Service/ Medical Record:            Other Records:   

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant contends he was not given a fair and speedy trial.
2.       The Applicant contends his misconduct was an isolated incident in 43 months of service with no other adverse action .
3.       The Applicant contends his misconduct occurred while on leave.

Decision

Date: 20131204            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, to wit: not having a liberty buddy in Okinawa, Japan) , and for of the UCMJ: Article 112a (Wrongful use, possession, etc., of controlled substances , 3 specifications for the wrongful use of marijuana ). The Applicant also had a pre-service drug waiver for using marijuana 15 times prior to entering the Marine Corps and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 04 December 2000 . The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 17 May 2005. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for 100 days. The Applicant’s pre-trial agreement suspended all confinement in excess of 60 days for 12 months. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals with assignment of error alleging excessive post-trial delay; it was reviewed and the findings were affirmed on 05 October 2006. Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.

: (Nondecisional) The Applicant contends he was not given a fair and speedy trial. Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s trial for which he was found guilty cannot form a basis for relief. The U.S. Navy-Marine Corps Court of Criminal Appeals reviewed the Applicant’s Special Court-Martial conviction and determined there were no errors and affirmed the findings. Therefore, his contention that he did not receive a fair and speedy trial was reviewed by the appeals court and found to have no validity.

: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in 43 months of service with no other adverse action. During the Applicant’s enlistment, he received three retention warnings, was found guilty at an NJP for violating UCMJ Article 92, and was found guilty at a Special Court-Martial for three violations of UCMJ Article 112a. He did not receive a Good Conduct Medal, which requires three years of misconduct-free service. The confusion likely arose from Block 18 on the Applicant’s DD Form 214, which reset the three-year counter and corresponds to his last instance of misconduct, which was his Special Court-Martial conviction on 17 February 2005. The Applicant’s NJP on 8 July 2002 after less than 12 months of service prevented the Applicant from receiving a Good Conduct Medal. T he record shows the Applicant pled guilty to three specifications of the wrongful use of marijuana at a Special Court-Martial. The NDRB determined the Applicant d id not warrant clemency. Clemency denied .

: (Decisional) ( ) . The Applicant contends his misconduct occurred while on leave. Article 2 of the UCMJ establishes jurisdiction over members of the regular components of the Armed Forces, and therefore, jurisdiction is not limited to a member’s location or duty status. While the Applicant may have been on leave while he wrongfully used marijuana, it does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service . Clemency denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.
Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.
Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

Similar Decisions

  • USMC | DRB | 2010_Marine | MD1001818

    Original file (MD1001818.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of ServicePrior Service: Inactive:USMCR (DEP)19991028 - 20000820Active: Period of Service Under Review: Date of Current Enlistment: 20000821Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20061205Highest Rank:Length of Service: Years Month03 DaysEducation Level: AFQT:45MOS: 6153Proficiency/Conduct Marks (# of occasions):(6)/(6)Fitness Reports: Awards and Decorations (per DD 214):Rifle...

  • USMC | DRB | 2010_Marine | MD1000051

    Original file (MD1000051.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are eligible for...

  • USMC | DRB | 2010_Marine | MD1000164

    Original file (MD1000164.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...

  • USMC | DRB | 2009_Marine | MD0902486

    Original file (MD0902486.rtf) Auto-classification: Denied

    :(Decisional) () .The Applicant seeks clemency on the basis of equity in consideration of his record of service and isolated misconduct.The Board conducted a thorough examination of the Applicant’s record of service to determine whether his in-service performance warranted an upgrade to his Bad Conduct Discharge. Based on receiving two positive urinalysis test results for illegal drug use, his command chose not to process him for administrative separation, but instead to refer him to trial...

  • USMC | DRB | 2009_Marine | MD0902203

    Original file (MD0902203.rtf) Auto-classification: Denied

    Completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore,...

  • USMC | DRB | 2010_Marine | MD1002313

    Original file (MD1002313.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues Nondecisional Issues: The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate reenlistment in the armed forces.Decisional Issues: The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to at least General (Under Honorable Conditions), contending that he was...

  • NAVY | DRB | 2005_Navy | ND0500938

    Original file (ND0500938.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application: “Poor legal representation & lack of speedy trial.” Documentation Only the service record was were reviewed. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

  • USMC | DRB | 2014_Marine | MD1401139

    Original file (MD1401139.rtf) Auto-classification: Denied

    of controlled substances, 2 specifications) Specification 1: On or about 20040723, wrongfully use marijuana Specification 2: On or about 20040820, wrongfully use methamphetamineSentence: 60 days Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community...

  • USMC | DRB | 2015_Marine | MD1500095

    Original file (MD1500095.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT-MARTIAL. ” Additional Reviews : After a document review has been...

  • USMC | DRB | 2011_Marine | MD1100206

    Original file (MD1100206.rtf) Auto-classification: Denied

    The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana) and for exceeding the Marine Corps height/weight standards. Issue 2: (Decisional) (Clemency/Equity)CLEMENCY NOT WARRANTED. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of...